1 In The 

### Court of Appeals Ninth District of Texas at Beaumont

_________________

NO. 09-17-00177-CR NO. 09-17-00178-CR NO. 09-17-00179-CR NO. 09-17-00180-CR NO. 09-17-00181-CR



### _________________ HERMAN EDWARD HO FFMAN, Appellant
V. THE STATE OF TEXAS, Appellee

________________ __________________ _______________ ______________ _________ On Appeal from the County Court at Law No. 1 Montgomery County, Texas Trial Cause Nos. 15-307438, 15-30 7425, 15-307422, 15-307041, 15 -307040

________________ __________________ _______________ ______________ _________ MEMORANDUM OPINION The State charged Herman Edward Hoffman (Herman) in five separa te causes of cruelty to livestock animals, alleging he failed to provide necessary food, water,2 or care arising out of his treatment of over two hundred horses

. 1, 2 See Tex. Penal Code Ann. § 42.09(a)(2) (West 2016). A jury convicted Herman in all five causes.
See id. The trial judge assessed punishment of one year in the Montgom ery County Jail for each case, to be served concurrently, and a $4,000 fin e in each case. Herman appeals his convictions. In four issues, Herman argues: (1) the judgments should be reve rsed for a new trial with separate trial counsel because appellants’ trial counsel was ineffective; (2) the judgments should be reversed based on Brady and Michael Morton Act violations; (3) the judgments should be reversed and an acquitt al entered because the evidence is factually insufficien t in each case; and (4) the ju dgments should be reversed and dismissed with prejudice because appellants were p rosecuted twice for the same offenses violating the Double Jeopardy Clauses of the United States and Texas Constitutions. We overrule a ll issues and affirm the tria l court’s judgment.

1 His wife, Kathleen Hoffman, was also charged and convicted for cruelty to livestock animals arising out of the same instances. They were tried together and filed a joint brief raising identical issues on appeal. We addr ess Kathleen Hoffman’s appeal in a separate opinion. 2 Mr. Hoffman and his wife were initially charged with twenty se parate counts of cruelty to livestock animals by failing to provide necessary food, water, or care; however, the State proceeded with f ive counts for purposes of e xpediency.3 I. Factual Background The State seized 207 horses fromKathleen and Herman Hoffman. B efore the criminal prosecution, the Hoffmans were subject to civil forfei ture proceedings in Justice Court, which judgment was appealed to the County Court at Law for a trial
de novo pursuant to Texas Health and Safety Code section 821.025. See Tex. Health & Safety Code Ann. §§ 821.0 23, 821.025 (West Supp. 2018). 3 The Justice Court determined they treate d all seized animals cruelly, ordered the animals surrendered, and ordered the Hoffmans to pay $150,000.00 for costs associate d with the care of the animals. The County Court at Law issued almost identical fi ndings but ordered the Hoffmans to pay $485,331.68 in costs incurred by the SPCA f or housing and caring for the animals. The Hoffmans were subsequently prosecut ed together and convicted in five causes each of t he criminal offense of cruelt y to livestock animals under Texas Penal Code section 42.09(a)(2). See Tex. Penal Code § 42.09(a)(2). The criminal convictions are the basis of these appeals. The Hoffmans resided at property on League Line Road in Montgom ery County, Texas. Herman and his wife owned around fifteen acres a nd leased an additional twenty-five acres adjacent to their property, or aro und forty acres

3 We cite the current version of the statute as it does not affe ct the outcome of these appeals.4 altogether. In addition to 207 horses, 4 the Hoffmans kept dairy cows and goats on the forty acres. 5 Herman had extensive experience raising and breeding horses. 6 Herman graduated from Purdue University in 1975, majoring in farm and business management, with a minor in economics and a minor in animal sci ence. Herman indicated he and his wife’s quart er horse business began in 198 4 and 1985. Herman testified he purchased animals from across the country and put a “foundation herd” together of the closest blood to famous horses. A deputy constable from the live stock division, Gordon Welch, i ndicated his department began receiving complaints about the body weight and living conditions of the Hoffmans’ horses in 2014. 7 Between 2014 and June 2015, the deputy constables received and responde d to many complaints regarding the Hoffmans’ horses. Welch testified they gave the Hoffmans recommendations for improving the

4 State’s Exhibit 233 was a video played for the jury in which H erman Hoffman estimated they had 190 hor ses on the property, fifty co ws, and twenty goats. 5 None of the Hoffmans’ othe r animals were seized. 6 Kathleen also had extensive experience with horses, which we a ddress in a separate opinion. 7 Deputy Welch testified he met t he Hoffmans approximately five years prior to trial when one of their bulls escaped. At the time, the Hoff mans gave Deputy Welch a tour of their property where Welch observed eighty to o ne hundred horses in good health.5 horses’ condition by “stepping up” the feeding program and ensu ring they wormed the horses. The deputy suggested H erman and Kathleen were both in control of the horses, and the recommendations were directed to them both. The deputy constables assigned to the livestock division worked with the Hoffmans for several months before issuing a warning on Oct ober 10, 2014. Deputy Welch circ led the definition of cruelty indicating “fails unreasonably to provide necessary food, water, or care for a livestock animal in the person’s custody” on the written warning and directed the Hoffmans to seek medical assistance for the horses from a l icensed veterinarian. Welch wanted a vet t o examine the animal s and make recommendati ons because he felt the Hoffmans’ feeding program was inadequate due to the la rge number of horses in the pens, and the weaker horses were not able to get adequate feed. According to Welch, veterinarian Dr. David Husfeld visited the Hoffmans’ property and evaluated the horses. Dr. Husfeld opined in a lett er dated October 27, 2014, the “condition of this gr oup of horses ranges from [] goo d to very bad.” Dr. Husfeld suggested the remedy was “more and better feeding” alon g with a “good parasite control program[.]” Dr. Husfeld also suggested “the th inner animals ideally need to be separated to [feed.]” The deputy constables received more complaints about the horses ’ condition and made additional visits to the Hoffmans’ property where they observed a further6 decline of the animals. On June 23, 2015, Deputy Welch, his par tner, and an investigator with the District Attorney’s office went to the Ho ffmans’ property. Based on their visual observations, they obtained a search warr ant for the property on June 24, 2015. As a result of those findings, they also secu red and executed a seizure warrant. At trial, several witnesses who participated in the seizure des cribed the deplorable conditions. The partic ipating Society for the Preven tion of Cruelty to Animals (SPCA) barn supervisor testified her first impression o f the property was it appeared to be a “kill pen.” She also observed many skinny, dis tressed horses. The SPCA barn supervisor also testif ied there was no grass for the horses and no place for them to graze. Because of the large number of animals and the logistics of dea ling with a seizure of that magnitude, Mont gomery County required help from the SPCA. Deputy Welch and other State witn esses suggested the Hoffmans’ horses were unaccustomed to handling, so it took around two weeks to round them up, give them medical treatment, worm them, and transport them to another loc ation. The SPCA barn supervisor assisting with the seizure described horses wit h rain rot 8 , bones showing, and overgrown hooves.

8 “Rain rot” is an infection of the skin.7 Dr. Amy Crum, an SPCA veterinarian, went to the Hoffman propert y to assess the overall situation and triage horses in need of emergency ve terinary care. Dr. Crum testified her initial impression of the herd was they were in very poor condition with nutritional and hoof care problems, respiratory disease, i nfected wounds, and many other issues. Dr. Crum testified she was concerned some an imals’ deaths were imminent, so they removed eighteen of those horses to the Houst on SPCA for immediate care. According to Dr. Crum, the horses lacked basic veterinary care and husbandry, nutrition, and foot care—things horse owners should provide. Of the horses requiring emergency veteri nary care, several were emacia ted and in danger of not being able to support their own weight, while others had debilitating wounds. Dr. Crum explained how they tracked and cared for the seized ho rses by assigning them a unique six number identification and connected the recor ds by using that number. State witnesses, including Dr. C rum, discussed how they used th e Henneke Body Conditioning Score (BCS) for horses. That scale provides a score ranging from 1 to 9 for evaluating a horse’s body condition. A score of 1 me ans a horse is extremely emaciated, and a score of 9 suggests an obese horse. Dr. Crum and the SPCA barn supervisor testified an ideal BCS is 5.8 Several State witnesses discusse d appropriate horse care and hu sbandry standards at trial. These witne sses testified horses required r egular hoof care by a farrier, including trimming, and neglecting a horse’s hooves co uld result in laminitis and other permanent lameness. Dr. Crum testified this was parti cularly important for confined horses that had no opportunity to run or naturally wea r down their hooves. Dr. Crum also testified that hor ses required regular dental car e. Failure to periodically “float” or file down a horse’s teeth, results in t he teeth growing to sharp points and impeding the animal’s ability to eat. Witnesses testified about the n eed for a proper parasite contro l program, and evidence revealed a veterinaria n made that recommendation to th e Hoffmans before the seizure of the animals. Witnesses also discussed the need t o seek prompt veterinary attention for horses with wounds or for animals that collapsed. Evidence established when there is no gr ass readily available for horses , an owner should regularly feed hay and grain to provide adequate nutrition. Fin ally, to ensure weaker, thinner animals had an opportunity to feed adequately, evidence showed they should be separated from the rest of the herd. Montgomery County seized 207 horse s. Dr. Crum testified that ar ound twenty-five percent of the Hoffm ans’ horses were of an adequate weight. The SPCA barn supervisor testified thirty seized horses could not be sav ed and were euthanized,9 and three horses died unassisted. Some horses had been adopted, and about eight were available for adoption. Other horses were not ready to be adopted, and the SPCA continued to work with those. Before trial, the State revea led it was going forward with the criminal prosecutions against the Hoffmans for five of the horses and el ected to consolidate the trials of Herman and Kathleen. The criminal trial began on May 15, 2017, and the jury convicted the Hoffmans on all counts on May 18, 2017. II. Analysis A. Sufficiency of the Evidence Asserted as Herman’s third issue, we address his sufficiency c omplaint first. Herman argues the evidence is factually insufficient to supporthis convictions for cruelty to livestock animals. 9 See Tex. Penal Code Ann. § 42.09(a)(2). When an appellant raises a claim of insufficiency, we review the eviden ce in the light most favorable to the verdict to det ermine whether any rational fact finder could have found the essential elements of the offense beyond a reasonable doubt. See Brooks

9 Although Herman complains of fact ual insufficiency, for years, Texas has recognized the legal sufficiency standard as outlined in Jackson v. Virginia as the only standard reviewing courts should employ in determining whe ther the evidence is sufficient to support each ele ment of a criminal offense bey ond a reasonable doubt. See Jackson v. Virginia , 443 U.S. 307, 318–19 (1979); Brooks v. State , 323 S.W.3d 893, 895, 912 (Tex. Crim. App. 2010).10 v. State , 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia , 443 U.S. 307 (1979)) (concluding the Jackson standard “is the only standard that a reviewing court should apply” when examining the sufficiency of the evidence); Hooper v. State , 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). We look to “all of t he evidence in the record, both dir ect and circumstantial, whether admissible or inadmissible.” Dewberry v. State , 4 S.W.3d 735, 740 (Tex. Crim. App. 1999) (citations omitted). The jury is the sole judge of the witnesse s’ credibility and weight to be given to their testimony. Tate v. State , 500 S.W.3d 410, 413 (Tex. Crim. App. 2016). Juries may draw multiple r easonable inferences from fact s so long as each inference is supported by the evidence presented at trial. Id. Accordingly, we must defer to the jury’s determinations of weight and credibility of the witnesses. See
Brooks , 323 S.W.3d at 899; Hooper , 214 S.W.3d at 13. In conducting a sufficiency review, an appellate court consid ers “‘events occurring before, during[,] and after the commission of the offense a nd may rely on actions of the de fendant [that] show an understanding and common design to do the prohibited act.’” Hooper , 214 S.W.3d at 13 (quoting Cordova v. State , 698 S.W.2d 107, 111 (Tex. Crim. App. 1985)). The State was required to prove beyond a reasonable doubt Herm an intentionally or knowingly faile d to provide necessary food, wa ter, or care for each11 of the livestock animals in his custody listed in the complaint s for a jury to find him guilty in all causes. See Tex. Penal Code Ann. § 42.09( a)(2). “Necessary food, water, or care” is defined by the statute to mean “food, water, or car e provided to the extent required to maintain the livestock animal in a state of good he alth.” Tex. Penal Code Ann. § 42.09(b)(6) (West 2016). The evidence here was overwhelm ing that Herman and his wife bo th failed to provide necessary food or care as needed to maintain each of th e five horses in good health. See id. The Hoffmans focus solely on the evidence of the horses’ malnourishment as being insuffic ient. They argue that without c ertain blood tests the State cannot establish the animals were malnourished. While we disagree with Herman’s argument the evidence was insufficient to find the hor ses were malnourished, there was sufficient evidence about the lack of c are for each one of these animals. Veterinary records revealed and testimony at tri al supported each of the animals’ hooves had been neglected, and they all suffered f rom parasites. Moreover, four of the animals suffered from significant untreat ed health problems and wounds. 1. Evidence Regarding Horse 287593 Horse 287593 was an older palomi no mare. Evidence revealed she was extremely emaciated and had signi ficant dental problems. The St ate admitted12 photographs depicting a horse with protruding hip bones, should er bones, a sunken face, and vertebrae showing. Evi dence revealed the horse had a BCS of 1, indicative of extreme emaciation. Testimony from the SPCA barn supe rvisor suggested a horse wouldnot be in poor body condition solely because of its age, and if an older horse was provided with proper nutrition, it should not look skinny. Dr. Crum test ified the horse was severely emaciated, suffered from muscle wasting, and completel y lacked muscle due to starvation. Dr. Crum tes tified the horse’s dental proble ms rendered her unable to chew food, and the horse lacked dental care for an extended period. Kathleen and Herman testified the horse had been kicked in the jaw, resultin g in broken mandibles years before, and a veterinarian told them to “leave it alone.” Dr. Crum stated the horse was not in good health when seized, d id not have adequate food, and had been suffe ring for months. Testimony and veterinary records revealed the mare had gastrointe stinal parasites, particularly strongyle ova, which Dr. Crum testified were easily treatable with over-the-counter medications and a basic part of horse care. Dr. Cru m described attempts to provid e the mare soft food in the form of mash and intravenous fluids, but even after supp orting her with a sling, they could not keep her standing, s o she was humanely euthanize d.13 2. Evidence Regarding Horse 287598 The evidence for horse 287598 revealed he had a BCS of 4 and e xtremely overgrown hooves. Dr. Crum and the SPCA barn supervisor testifi ed the horse’s hooves had not been trimmed in a very long time, and the left f ront hoof was extended into an “elf shoe” shape. Photographs admitted by the State depict the hoof Dr. Crum described. Dr. Crum conveyed this was very abnormal, t he hoof was egregiously overgrown, and it t ook months for the horse’s hoof to become so overgrown. Dr. Crum estimated it had been months to years since the horse received farrier care. Dr. Crum also testified an animal kept in a stall requires more hoof care because they do not wear their hoo ves down naturally. Dr. Crum described the importance of hoof care and if neglected, how a horse’s hooves could lead to other serious health problems, including laminitis. The State’s evide nce and testimony revealed the horse suffered fr om laminitis. The SPCA barn super visor testified laminitis stems from a separation of the hoof wall from the cof fin bone, which is incredibly painful for the animal. Dr. Crum testified the horse was in pain, as well. In addition to severe hoof problems and lameness, Dr. Crum reve aled this horse had parasites, pointy teeth that had not been floated in months, an d he had not been fed adequate food. Dr. Crum suggested they euthanized him because o f his poor longterm prognosis.14 At trial, Herman attributed the horse’s overgrown hooves to ba d genes and asserted because the horse was lame, he was more comfortable wi th a long hoof than a short hoof. 3. Evidence Regarding Horse 287609 Trial testimony and evidence r evealed horse 287609 suffered fr om a significant wound to a distal limb containing granulation tissu e and pus, and the horse had difficulty bearing weight on that limb. 10 Dr. Crum testified the horse suffered from the wound for at leas t several weeks, and a veter inarian should be involved in the care of a wound that severe. Dr. Crum also test ified she would recommend surgical debridement, cleaning, and bandaging before closing the wound. An x-ray of the horse’s l eg was admitted as State’s Exhi bit 147. Dr. Crum said the x-ray revealed infecti on had spread to the bone. This condition limited treatment options going forward, and due to the animal’s prolon ged suffering, they decided to humanely euthanize it. In addition to the leg wound, the horse had parasites, cracked hooves, and ba d teeth. Dr. Crum estimated it had been without proper dental care for months.

10 Evidence suggested the wound was consistent with wire being wr apped around the leg.15 4. Evidence Regardi ng Horse 287610 Evidence and testimony revealedhorse 287610 had a BCS of 2. S tate’s Exhibits 152 through 156 reveal this animal was extremely emaci ated. Dr. Crum testified the horse had gastrointestinal parasites, had not bee n getting proper food, and was very weak because he wa s so emaciated. Dr. Crum suggest ed horse 287610 was about 400 pounds underweight , and it would take many months for him to become that emaciated. Veterina ry records admitted at trial are in accord with this testimony. Dr. Crum stated the horse did not have healthy hoove s and was without proper farrier care for at least several months. Dr. Crum testi fied she did not expect horse 287610 to survive when she first saw him, but they admini stered intravenous fluids to the horse for several days, and thereafter, he only r equired basic care and needed to eat. Testimony revealed this horse collapsed during the seizure afte r running for twenty or thirty minutes while t hey sought to load him and was unable to stand until they administered intravenous fluids. Dr. Crum suggested it is an emergency situation when a horse cannot stand. At trial, Herman contradicted this testimony and claimed people ran the horse for two-and-a-half hours during th e seizure. Herman testified t he horse had fought,16 played, and ran with the rest of the herd earlier in the day. H erman also suggested the horse was the dominant ma le and was always thin. 5. Evidence Regardi ng Horse 287611 The State admitted photographs of horse 287611, a sorrel mare, as Exhibits 166 through 185. The images depict a sorrel mare significantly underweight with “rain rot.” The photographs also reveal several deep wounds and rotting flesh over the horse’s left hip. Veterinary records and Dr. Crum’s testimo ny revealed the mare had a BCS of 2 and was severely e maciated. The horse had bad ho oves and parasites. Dr. Crum testified the horse had large and chronic lacerations over both her hips draining pus, suggesting they had been there for at least sever al weeks; the skin was also dying from prolonged infection. Dr. Crum testified a prude nt owner should have called a veterinarian to clean a ppropriately and debride the wo und, provide antibiotics and pain management. Dr. Crum conveyed the injuries were painful, and the horse was lame in the rear limbs. Dr. Crum testified the ho rse was not accustomed to human interaction, would not tolerate restraint, and oral sedatives had little effect. Dr. Crum revealed t he horse was euthanized becau se it was determined to be a danger. Herman testified horse 287611 wa s wounded when she became wedge d between two trees. Her man contradicted the testimony of Dr. Cru m and stated it was17 protocol to leave the wound like that, and it would have healed in six months. Herman testified there was nothi ng at all inherently dangerous about the wound.
6. Other Evidence The Hoffmans testified severe w eather in the spring of 2015 pre cluded deliveries of hay and feed to their property. Herman testified horses “take care of themselves[,]” and he did everything he could for the health an d welfare of the horses given the circumstances. Kathleen testified she did the same an d described the lengths she went to caring for the animals, despite her having serious heart problems. The Hoffmans both testified they divided the ownership of the a nimals, where Herman had the horses, and Kathleen owned the cattle. Kathleen testified Herman was the actual owner of the horses in June 2015. Testimony reve aled this was done as part of a business arrangement. Ownership is not an element of the offense, however. See Tex. Penal Code Ann. § 42.09(a) (2). Rather, the critical inqui ry is whether the animal was in the person’s custody. See id. “Custody” is defined by the statute as including the “responsibility for the health, safety , and welfare of a livestock animal subject to the person’s care and control, regardless of ownership of the livestock animal.” Texas Pe nal Code Ann. § 42.09(b)(3) (Wes t 2016) (emphasis added). Testimony from employees revealed Herman and Kathleen b oth had control of the horses. Vicki Henley tes tified she observed Kathleen hea vily involved in the18 care of the horses and directing employees on how to care for t hem. Deputy Welch also testified he understood both defendants were in control of the horses. Of the five horses included in t he complaints, only Horse 28761 0 survived. Viewing the evidence in the light most favorable to the verdict , we conclude the evidence was sufficient for a reasonable jury to find beyon d a reasonable doubt every element to support the jury’s verdict finding Herman Hoff man guilty of cruelty to livestock animals for each of the State’s complaints. Thus, we overrule his third issue.
B. Ineffective Assistance of Counsel and Brady /Michael Morton Act Violations We will address Herman’s first and second issues together, as t hey were both raised in his motion for new trial. We review a trial court’s deni al of a motion for new trial unde r an abuse of discretion standard. See Webb v. State , 232 S.W.3d 109, 112 (Tex. Crim. App. 2007);
Holden v. State , 201 S.W.3d 761, 763 (Tex. Crim. App. 2006); Lewis v. State , 911 S.W.2d 1, 7 (Tex. Cri m. App. 1995). Likewi se, we review a trial court’s denial of a motion for mistrial for an abuse of discretion. See Webb , 232 S.W.3d at 112; Archie
v. State , 221 S.W.3d 695, 699 (Tex. Cri m. App. 2007). We cannot substitute our judgment for the trial court’s; rather, we determine whether th e trial court was arbitrary or unreasonable in its decision. See Holden , 201 S.W.3d at 763. We must19 uphold the trial court’s ruling if it was within the zone of re asonable disagreement.
See Archie , 221 S.W.3d at 699 (citing Wead v. State , 129 S.W.3d 126, 129 (Tex. Crim. App. 2004)). Mistrial is an extraordinary remedy and onlyappropriate for highly prejudicial and incurable errors. Wood v. State , 18 S.W.3d 642, 648 (Tex. Crim. App. 2000).
1. Ineffective Assistance of Counsel In his first issue, Herman argues he received ineffective assi stance of counsel. His complaints against trial counsel fall into two main categor ies: (1) failure to obtain additional discovery; and (2) a conflict between Herman and his wife rendered the attorney represen ting them both ineffective. First, he asserts trial counsel failed to “effectively obtain d iscovery from the State and its agents[.]” Herman points to trial counsel’s inabi lity to obtain blood test results, complete records of the seizing agency, the Hoffmans’ seized medical and feeding records, and photos taken by witnesses, which would hav e been favorable evidence for his defense. Herman contends that counsel failed t o properly enforce court orders to produce documen ts and he failed to subpoena doc uments needed for expert analysis or otherwise ret ain a defense expert. However, our review of the record shows that the discovery r equests and subpoenas of which they complain20 were apparently issued improperl y and were subsequently quashed while Herman and Kathleen were defending themselves pro se . The Hoffmans argue Kathleen was more egregiously affected by t he ineffective assistance of counsel because of a conflict of inte rest. 11 Particularly, they assert on appeal her best defense, considering her debilitating medical condition, would have been to blame Herman for neglecting the horses, but trial counsel failed to assert such a defense. Nonet heless, Herman has failed to adv ance a logical argument on appeal that he was harmed in any way by counsel’s f ailure to adopt a trial strategy to blame him for n eglecting the horses. The Hoff mans moved for a new trial. After a hearing, the trial court denied the motion. Whil e trial counsel testified at the hearing, no testimony was elicited from him regarding hi s trial strategy. At the hearing, the Hoffmans did not s ubpoena any of the witnesses ide ntified as favorable defense witnesses or provide affi davits to show what each witne ss would have testified to or introduce record s they alleged contained exculp atory evidence. “An appellate court looks to the totality of the representatio n and the particular circumstances of each case in evaluating the effectiveness of c ounsel.” Thompson v.
State , 9 S.W.3d 808, 813 (Tex. Crim. App. 1999) (citing Ex Parte Felton , 815

11 We note, however, Kathleen and Herman filed a joint brief in t his appeal.21 S.W.2d 733, 735 (Tex. Crim. App. 1991)). To establish ineffecti ve assistance of counsel, an appellant must meet a two-pronged test: First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so se rious that counsel was not functioning as the “counsel” guaranteed the def endant by the Sixth Amendment. Second, t he defendant must show that th e deficient performance prejudiced the defense. This requires sho wing that counsel’s errors were so serious as to deprive the defenda nt of a fair trial, a trial whose result is reliable. Strickland v. Washington , 466 U.S. 668, 687 (1984); Hernandez v. State , 726 S.W.2d 53, 55–56 (Tex. Crim. App. 1986). “Unless [an] appellant can pr ove both prongs, an appellate court must not find counsel’s representation to be in effective.” Lopez v.
State , 343 S.W.3d 137, 142 (Tex. Crim. App. 2011) (citing Strickland , 466 U.S. at 687); Thompson , 9 S.W.3d at 813. Allegations of ineffectiveness must be shown in the record, and the record must affirmatively establish the all eged ineffectiveness. Thompson , 9 S.W.3d at 813. There is a strong presumption counsel’s cond uct “[fell] within the wide range of reason able professional assistance[.]” Jackson v. State , 877 S.W.2d 768, 771 (Tex. Crim. App. 1994) (quoting Strickland , 466 U.S. at 689); see also Bone v. State , 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). As for a defendant being prejudiced by a trial attorney’s defic ient performance, courts have explaine d “[t]o show prejudice, ‘[t]he defendant must show that there is a reasonable probability that, but for couns el’s unprofessional22 errors, the result of the proceed ing would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’”
Jackson , 877 S.W.2d at 771 (quoting Strickland , 466 U.S. at 694). a) Discovery Assuming without deciding that Herman met his burden under the first prong and shown that trial counsel’s rep resentation was deficient, He rman has failed to meet the requisite second prong. Herman focuses on trial counse l’s “failure to obtain” certain discovery, including but not limited to records , necropsy reports, witness interviews, blood test r esults, and other documents. Be yond asserting the foregoing information was necessary to his defense, Herman made no showing that trial counsel’s failure to obtain the evidence would have chang ed the outcome at trial or that it prejudiced him in any way. The Hoffmans complain tha t the State failed to produce blood test results of each of the five horses which the y assert are necessary to accurately assess a BCS score for each horse. The evidence, though, would only go to the weight of the evidence offered by the State’s expert witnesses and not to the admissibility of their opinions. The record shows that requ ested records were produced electronically by the State. The trial court held any information unrelated to the five specific horses at issue was irrelevant. While the SPCA and the State produced requested documentation in their possession or subject to their control,23 some documentation the Hoffmans requested was shown not to exis t. Thus, Herman failed to show a different outco me would have resulted. Moreove r, although Herman claims he was unable to interview certain witnesses, he failed to call any of these witnesses to testify at the hearing on the motion for new trial . So, there was no indication of what they would ha ve testified to at trial, much less whether it would have been favorable to Herman. Th e Hoffmans made no showing tha t but for counsel’s deficient representati on, there would have been anoth er outcome at trial.
See id. The record reveals the Hoffmans conducted much of the discover y pro se , and even after the trial court warned them on October 26, 2016, of its intent to set the matter preferentially, they delayed in retaining trial coun sel until sometime after January 24, 2017, for a trial tha t began on May 15, 2017, which would have significantly impacted any attorney’s ability to retain experts or pursue additional discovery. b) Dual Representation and Conflict Herman and Kathleen were tried jo intly and represented by the s ame retained counsel. 12 In some situations, the same attorney’s representation of mult iple

12 It has not been lost on this Court that Herman and Kathleen ar e represented by shared retained appellate couns el. Prior to filing a brief, they moved to consolidate their appeals and s ubsequently filed a joint brief, which may be viewed as an attempt to invite error by advancing a claim of conflict of interest. Because we find their claim of a conflict of interest to be wholly without merit, the Court opted24 defendants in the same trial ma y constitute ineffective assista nce of counsel. Pina v.
State , 127 S.W.3d 68, 73 (Tex. App.—Houston [1st Dist.] 2003, no pet .) (citing Holloway v. Arkansas , 435 U.S. 475, 489–90 (1978); James v. State , 763 S.W.2d 776, 778 (Tex. Crim. App. 1989)). “ However, multiple representa tion is not per se violative of constitutional guarantees of effective assistance of counsel.” James , 763 S.W.2d at 778. A defendant who does not object at trial to mult iple representation must show actual and not merely speculative conflict of interes t before an appellate court will reverse. Id. at 778–79; see also Routier v. State , 112 S.W.3d 554, 581–82 (Tex. Crim. App. 2003). To prevail on a claim of ineffective assistance based on a conflict of interest, Herman must show (1) his counsel was burd ened by an actual conflict of interest, and (2) t he conflict had an adverse effec t on specific instances of counsel’s performance. See Cuyler v. Sullivan , 446 U.S. 335, 348–50 (1980);
Monreal v. State , 947 S.W.2d 559, 564 (Tex. Crim. App. 1997). “[A]n actual conf lict of interest exists when ‘one defendant stands to gain significa ntly by counsel adducing probative evidence or advancing plausible arguments th at are damaging to

not to strike the brief for viola ting Texas Rules of Profession al Conduct 1.06, necessitating briefs from new a nd separate counsel on appeal. See Tex. Disciplinary Rules Prof’l Conduct R. 1.06, reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G., app. A (West 2013).25 the cause of a co-defendant[.]’” Routier , 112 S.W.3d at 584 (quoting James , 763 S.W.2d at 779). Although the Hoffmans argue in their brief Kathleen’s best defe nse would have been to blame Herman for ne glect of the horses, the existe nce of a better defense for one party does not rise to the level of an actual c onflict. Herman and his wife employed the joint trial strategy that elements beyond the ir control prevented them from getting food to the animals. Herman testified there were semi-loads of hay and grain coming in twice a week. They argued torrential rains blocked eighteen wheelers from delivering hay and feed to the livestock. They al so sought to argue there was nothing wrong with their animals, blaming overgrown hooves on bad genetics, rationalizing that ema ciated horses had always been t hat way, and testifying emaciated horses had been fed adequately. Like the f acts in James , the Hoffmans’ strategy at trial was that neither was culpable. See 763 S.W.2d at 780. Moreover, neither Herman nor Kat hleen tried to incriminate the other in any way at trial, consistent with their joint defense. See id. Kathleen testified at trial they both did the best they could. Herman likewise testified he did everything he could for the health and welfare of the horses given the circumstances. At tr ial, Herman confirmed he felt that the general population’s expectation for the condi tion of these horses was unreasonable. The acknowledgment of a hypotheti cally superior trial strategy on26 appeal and speculative conflicts does not retroactively create an actual conflict at trial. Id. Additionally, although trial coun sel testified at the hearing o n the motion for new trial, no testimony was elic ited from him to develop the re cord to support Herman’s claim of conflict of interest or otherwise explain cou nsel’s strategy at trial. Separate counsel for each co-defe ndant might well have proven m uch more damaging than the strategy in effect adopted by trial counsel. Any attempt to impeach the other or place blame on the other spouse would have likely elicited specific, damaging, and prejudicial facts. We hold that this re cord fails to reflect any conflict of interest on the part of retained counsel.
2. Brady/Michael Morton Act Violations In his second issue, Herman complains the trial court erred in denying his motion for mistrial and motion for new trial based on Brady and Michael Morton Act violations.
In Brady v. Maryland , the United States Supreme Court held a defendant’s due process rights are violated when the prosecution suppresses evidence favorable to an accused where the evidence is material, regardless of the prosecution’s good faith or bad faith. 373 U.S. 83, 87 (1963). Before an appellate court can find reversible error for a Brady violation, the defendant must show: (1) the State failed27 to disclose evidence, regardless of the prosecution’s good or b ad faith; (2) the evidence withheld is favorable to the defendant; and (3) the ev idence is material, i.e., there is a reasonable probability had the evidence been disclos ed, it would have changed the outcome of the trial. Hampton v. State , 86 S.W.3d 603, 612 (Tex. Crim. App. 2002). “‘The mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish ‘materiality’ in the constitutional sense.’” Id. (quoting United States v. Agurs , 427 U.S. 97, 109–10 (1976)); see also Pena v. State , 353 S.W.3d 797, 812 (Tex. Crim. App. 2011). Moreove r, the Brady rule does not apply when the defendant was already aware of the information. Hayes v. State , 85 S.W.3d 809, 815 (Tex. Crim. App. 2002) (citing Havard v. State , 800 S.W.2d 195, 204 (Tex. Crim. App. 1989)). The Michael Morton Act is codified in Texas Code of Criminal Pr ocedure Article 39.14. See Tex. Code Crim. Proc. Ann. art. 39.14 (West 2017). It requires the State, upon request, to disc lose certain items to a defenda nt. See id. art. 39.14(a);
Glover v. State , 496 S.W.3d 812, 815 (Tex. App.—H ouston [14th Dist.] 2016, pet

. ref’d). If the State has not received a request, it only has an affirmative duty to disclose exculpatory information. Tex. Code Crim. Proc. Ann. ar t. 39.14(h); Glover , 496 S.W.3d at 815.28 Here, much of the evidence the Hoffmans complained of was foundby the trial court to be irrelevant or not in existence. The trial cou rt explained documentation and records for anim als seized that were not the subject of the criminal trial were not relevant. The Hoffmans contended those records would have shown the large remainder of the herd was healthy. But such rec ords were not shown to have any bearing on the condition of the five horses in the criminal complaints. This is particularly true given the fact law enforcement offici als and a veterinarian of the Hoffmans’ choice instructed the Hoffmans to separate the weaker and thinner horses from the herd to ensure t hey had adequate access to feed . Further, with respect to evidence of the five specific horses at issue, the State exp lained in pretrial hearings necropsies were not performed on all the animals and therefore, the documents being requested did not exist. Dr. Crum testified at trial that the interpretation of the bloo d tests was included in the veterinary records, but the full blood work was stored i n a database. The medical records summarizing the blood tests revealed the animal s were malnourished, which certainly could not be considered exculpato ry. The State maintained they provided the veterinary records on the five hor ses at issue, and at trial, Dr. Crum acknowledged some of the records contained mist akes. When defense counsel moved to strike a ll the veterinary records beca use they were29 “inherently unreliable on critical issues[,]” the trial court o verruled the objection and noted it went to the weight and not the admissibility of the ev idence. While the Hoffmans complained about the missing blood test results, the d iscovery they propounded did not specifically request those results. The Stat e’s duty to provide information under the Michael Mor ton Act is only triggered upon a timely request.
See Tex. Code Crim. Proc. Ann. art. 39.14(a). Under Brady and the Michael Morton Act, the State has only an affirmative duty to produce exculpat ory information. See
id. art. 39.14(h); Brady , 373 U.S. at 87. The Hoffmans’ suspicions the State had not produced evidence does not establish its materiality. See Hampton , 86 S.W.3d at 612. For these reasons, we concl ude the Hoffmans have not met t heir burden of establishing the materiality of the evidence, that it was excul patory, or that such evidence existed. The Hoffmans also complain of reco rds seized from their home pu rsuant to a warrant, specifically veterinary records and feeding records. T hey argue these records are exculpatory and woul d prove they provided proper ca re and food to the horses. At trial, Herman testif ied a vet recommended they not p erform surgery on Horse 287593’s broken jaw. Herman also testified two different veterinarians examined the leg of Horse 287609 on three or four occasions and advised the Hoffmans to spray it with a water hose, allowing it to heal fro m the inside out.30 According to Herman, the vet tol d them there was not “a thing y ou can do about it.” The Hoffmans did not call the veterinarians that allegedly gave this advice to testify at trial nor did they subpoena records to support these claims. If the records Herman described existed, the H offmans knew about them. Brady applies when there is information the prosecution is aware of, but a defendant is not

. Hayes , 85 S.W.3d at 815. Thus, Brady would not apply to these records. The Hoffmans repeatedly argue the State “singled out” five hor ses in bad shape, and since the animals were in a herd, they should be abl e to show the condition of the other horses in t he herd as proof they were no t guilty of cruelty. At multiple pretrial hearings, the trial court ruled evidence abou t the condition of the other seized animals was not relevant. This included medical re cords, blood tests, and necropsy reports. The trial court instructed the Hoffmans t hat they could subpoena any necropsy reports the Hoffmans maintained were miss ing or that the State did not have in its possession, directly from the SPCA, w hich they failed to do. From the record before us, we conclude the trial court did no t abuse its discretion in denying Herman’s motion for mistrial or motion fo r new trial. We overrule Herman’s first and second issues.31 C. Double Jeopardy Herman argues in his fourth issue he was prosecuted twice for the same offenses in violation of the Doub le Jeopardy clauses of the Uni ted States and Texas Constitutions. The United States Constitution provides, “No per son shall . . . be subject for the same offense to be twice put in jeopardy of lif e or limb[.]” U.S.
C ONST . amend. V. The Texas Constituti on provides, “No person, for th e same offense, shall be twice put in jeopardy of life or liberty; nor shall a person be again put upon trial for the same offens e after a verdict of not guil ty in a court of competent jurisdiction.” Tex. Const. art. I, § 14. Initially, we must determine wh ether jeopardy previously attac hed at the justice court hearing before determining whether Herman’s subse quent prosecution for animal cruelty was barred by double jeopardy. See State v. Almendarez , 301 S.W.3d 886, 890 (Tex. App.—Corpus Christi 2009, no pet.) (exami ning prosecution for cruelty to livestock animals pursuant to Texas Penal Code s ection 42.09 following a civil seizure trial under Chapter 821 of the Health and Safety Code); see also State v. Moreno , 294 S.W.3d 594, 597 (Tex. Crim. App. 2009) (explaining “jeopardy must have attached i nitially” before double jeopardy protections apply). Courts have previously examined the statutory scheme involving forfeiture of animals through civil proceedings and subsequent criminal prose cutions or vice32 versa. See Almendarez , 301 S.W.3d at 890. The statutory scheme under Chapter 821 of the Health and Safety Code is civil in nature. See id. at 891; Chambers v. State , 261 S.W.3d 755, 759 (Tex. App.—Dallas 2008, pet. denied) (notin g the State filed “animal cruelty case pursuant to [C]hapter 821 of the [H]ealth and [S]afety [C]ode dealing with the health and safety of animals, not as a crime” under Texas Penal Code section 42.09); Granger v. Folk , 931 S.W.2d 390, 392 (T ex. App.—Beaumont 1996, orig. proceeding) (recognizing, although not in a Double Jeopardy case, that this Court noted “two avenues exist for the State in protecting animals from cruel treatment, i.e., criminal prosecu tion under ... the [Texas] Penal Code and the civil remedy provided under [s]ection 821.023 of the [Texas] Health a nd Safety Code”); see also Bradley v. State , No. 01-08-00332-CR, 2009 WL 1688200, at *3 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d) (mem. op., not desig nated for publication). “[E]ven in those cases where the legislature has indicated an intention to establish a civil penalty, a court must inquire further whet her the statutory scheme is so punitive in purpose or effect as to transform what was cl early intended as a civil remedy into a criminal penalty.” Capps v. State , 265 S.W.3d 44, 49 (Tex. App.— Houston [1st Dist.] 2008, pet. ref’d) (citing Hudson v. United States , 522 U.S. 93, 99 (1997)); see also Bradley , 2009 WL 1688200, at *3. The factors courts must look to in making this determination are: (1) whether the sanction i nvolves an affirmative33 disability or restraint; (2) whether it has historically been r egarded as punishment; (3) whether it comes into play only on a finding of scienter ; (4) whether its operation will promote the traditional aims of punishment-retribution and deterrence; (5) whether the behavior to which it applies is already a crime; (6 ) whether an alternative purpose to which it may rationally be connected is assignable f or it; and (7) whether it appears excessive in relation to the alternative purpose ass igned. Hudson , 522 U.S. at 99–100 (citations omitted). Texas courts have examined animal cruelty statutes applying the Hudson factors. See Almendarez , 301 S.W.3d at 892–95; Bradley , 2009 WL 1688200, at **3–4. Those courts have concluded the intent of provisions 821 .022–.023 of the Health and Safety Code are civil in nature. See Almendarez , 301 S.W.3d at 895; Bradley , 2009 WL 1688200, at *3. Moreover, those courts analyzed sanct ions similar to the ones the Hoffmans faced here in light of the Hudson factors and concluded the sanctions were not “so punitive either in purpose or effect as to transform the civil action and re medies imposed into a criminal punishment” and therefore, subsequent criminal prosecution for cruelty to anima ls did not violate the double jeopardy prohibitions of the United States and Texas Con stitutions. See Almendarez , 301 S.W.3d at 895–96; Bradley , 2009 WL 1688200, at *4.34 In Almendarez , the defendant moved to quash a n indictment for cruelty to animals on the basis it violated double jeopardy since he had a lready been subject to proceedings in justice court where two of his horses were seize d, and he had to pay restitution to cover the costs. 301 S.W.3d at 888. The court th ere noted “proceedings brought under Subchapter B of Chapter 821 and the remedies auth orized therein are designed to protect animals from cruel treatment, and neither d ivesting a party from the ownership of cruelly treated animals nor requiring the paym ent of money for their care are excessive to this alternative purpose.” Id. at 895. Like our sister court
in Almendarez , we determine that although larger in scale, the civil seizure of the Hoffmans’ horses and fine imposed for their care was not excess ive. We conclude jeopardy did not attach to the civil proceedings, a nd therefore, the criminal prosecution of Herman did not violate the Double J eopardy Clauses of the United States or Texas Constitutions. Issue four is overruled.
IV. Conclusion We conclude the evidence was le gally sufficient to support Herm an’s convictions of cruelty for each of the five horses at issue. Ev en if we assume Herman’s trial counsel’s performan ce was deficient, Herman fail ed to establish he was prejudiced by any such deficiency and therefore, did not me et both prongs35 required to show ineffective assi stance of counsel. Further, He rman failed to establish violations of the Brady or the Michael Morton Act. Finally, the civil seizure and forfeiture proceedings for cruelty to livestock animals and the criminal prosecution for cruelty to livestock animals is not violative o f the Double Jeopardy Clause of the United States or Texas Constitutions. The judgmen ts of the trial court are affirmed.
AFFIRMED.

____________ ____________________ CHARLES KREGER Justice Submitted on September 4, 2018 Opinion Delivered November 14, 2018 Do Not Publish Before McKeithen, C.J., Kreger and Johnson, JJ.